Update on my case....

[lisser]

Ok guys, no more waiting for me it seems. I just got this in the mail today from WWR:

ORDER HOLDING PROCEEDINGS IN ADVANCE PENDING BINDING ARBITRATION

The plaintiff having moved for summary judgment pursuant to rule 56 blah blah....and the defendant filing an election of arbitration pursuant to the Cardmember Agreement governing this credit card account, and arguments being heard at the hearing held in this matter on XXXX and the Court being in all ways sufficiently advised,

IT IS HEREBY ORDERED AND ADJUDGED that this action is stayed pending binding arbitration as elected by the Defendant. Defendant shall initial arbitration pursuant to the terms of the arbitration agreement asset forth in the Cardmember agreement attatched to Plaintiff's Complaint as Exhibit A.

THIS IS A FINAL AND APPEALABLE ORDER THERE BEING NO JUST CAUSE FOR DELAY EXECUTION MAY ISSUE FORTHWORTH SO ORDERED THIS ______ DAY OF ______2010

Then there's a place for the judge to sign and another paper attached that is titled "Clerk's Certificate" and it just says a copy was mailed to me.

Of course I disagree with my initiating arbitration. Why should I file a claim against myself but I do not know to voice that since I'm the one that has asked for this to be settled via arbitration. Does anyone have any suggestions on where to go from this.

Personally I think this is just WWR's way of doing what the judge told their attorney to do, write an order since WWR's attorney didn't like my order, and then maybe/hopefully after this then they will turn this back over to 1 to deal with?

Thoughts? Suggestions? Concerns? Even if I sign this, there is no time frame stating when I have to file or what I'm even supposed to do with this order?

[FL4answer58]

from WWR:

ORDER HOLDING PROCEEDINGS IN ADVANCE PENDING BINDING ARBITRATION

The plaintiff having moved for summary judgment pursuant to rule 56 blah blah....and the defendant filing an election of arbitration pursuant to the Cardmember Agreement governing this credit card account, and arguments being heard at the hearing held in this matter on XXXX and the Court being in all ways sufficiently advised,

IT IS HEREBY ORDERED AND ADJUDGED that this action is stayed pending binding arbitration as elected by the Defendant. Defendant shall initial arbitration pursuant to the terms of the arbitration agreement asset forth in the Cardmember agreement attatched to Plaintiff's Complaint as Exhibit A.

THIS IS A FINAL AND APPEALABLE ORDER THERE BEING NO JUST CAUSE FOR DELAY EXECUTION MAY ISSUE FORTHWORTH SO ORDERED THIS ______ DAY OF ______2010

Then there's a place for the judge to sign and another paper attached that is titled "Clerk's Certificate" and it just says a copy was mailed to me.

Of course I disagree with my initiating arbitration. Why should I file a claim against myself but I do not know to voice that since I'm the one that has asked for this to be settled via arbitration. Does anyone have any suggestions on where to go from this.

Personally I think this is just WWR's way of doing what the judge told their attorney to do, write an order since WWR's attorney didn't like my order, and then maybe/hopefully after this then they will turn this back over to 1 to deal with?

Thoughts? Suggestions? Concerns? Even if I sign this, there is no time frame stating when I have to file or what I'm even supposed to do with this order?

Do you have a signed order from the judge on your MTC Arb?

-

[skippy1960]

Ok guys, no more waiting for me it seems. I just got this in the mail today from WWR:

ORDER HOLDING PROCEEDINGS IN ADVANCE PENDING BINDING ARBITRATION

The plaintiff having moved for summary judgment pursuant to rule 56 blah blah....and the defendant filing an election of arbitration pursuant to the Cardmember Agreement governing this credit card account, and arguments being heard at the hearing held in this matter on XXXX and the Court being in all ways sufficiently advised,

IT IS HEREBY ORDERED AND ADJUDGED that this action is stayed pending binding arbitration as elected by the Defendant. Defendant shall initial arbitration pursuant to the terms of the arbitration agreement asset forth in the Cardmember agreement attatched to Plaintiff's Complaint as Exhibit A.

THIS IS A FINAL AND APPEALABLE ORDER THERE BEING NO JUST CAUSE FOR DELAY EXECUTION MAY ISSUE FORTHWORTH SO ORDERED THIS ______ DAY OF ______2010

Then there's a place for the judge to sign and another paper attached that is titled "Clerk's Certificate" and it just says a copy was mailed to me.

Of course I disagree with my initiating arbitration. Why should I file a claim against myself but I do not know to voice that since I'm the one that has asked for this to be settled via arbitration. Does anyone have any suggestions on where to go from this.

Personally I think this is just WWR's way of doing what the judge told their attorney to do, write an order since WWR's attorney didn't like my order, and then maybe/hopefully after this then they will turn this back over to 1 to deal with?

Thoughts? Suggestions? Concerns? Even if I sign this, there is no time frame stating when I have to file or what I'm even supposed to do with this order?

Where I am from an order presented to the court has to be approved by both sides in a certain period of time. This should be a common practice, research your Civil Procedures and or Rules of Court and find this information. In California I believe it is 30 days. If the opposition or you don't respond then it is submitted to the court for signature as unopposed.

Once having found the procedure or rule that supports this, then re-draft the order with the changes you want. In your original post the judge said something to the affect of " I don't see that she has to initiate". You want to drive this point home with the other side, their claim against you, contract is clear "elect" by definition is different than "initiate". Two different things, this is WWR clients contract.

When you make the changes give them ample time to initiate, like 6 months. The reason being is that if this flips on you now you have a timeline involved, your honor I was willing to give them 6 months, shouldn't I be afforded the same.

You still hold a hammer, don't sign send your proposed order with a letter outlining the contract language differences between electing and initiating and judges quote made in front of both you and the attorney. Make a big deal about this in your letter! Throw a bit of sarcasm at them, I am sure this is a mistake in light of the judges comments during our hearing where he state "XXXXXXX" and it appears you missed that in your preperation of the order. As you recall he complimened my pro se filing and preperation, it is disappointing that your firm can't keep up with this case and the judges discussion during the hearing. While this is an oversight I am sure you can agree it is signifcant. Blah Blah Blah...

Good Luck keep sticking it to them.

[RebelLady]

Yeah...exactly what skippy1960 said...

I would also pound the point that nowhere in the arbitration language does it state that the party that chooses/elects arbitration is the one who has to initiate it. Another point you need to pound on is, How can I file a suit against myself? And, Why should I file their claim for them? After all, they're the ones with the legal expertise and such...

RL

[lisser]

Do you have a signed order from the judge on your MTC Arb?

-

The order I have signed by the judge from the Sept. 9th hearing says, "Parties ordered to arbitration pursuant to contract sued upon. This action held in abatement pending termination of arbitration proceedings." Before the judge wrote this order, I gave him the order I drafted and gave the WWR attorney a copy. The WWR attorney made fun of my order bc it had places for the judge to mark and X or a check mark so the judge told the WWR attorney to draft an order.

The judge did say that he didn't see how he could order me to initiate or order either of us to initiate for that matter. He just asked the WWR attorney if I was correct that the case should be heard in arbitration and not court, the WWR attorney said, "yes Judge, she is correct."

The order that was mailed to me today is not signed by a judge. There is a place for the judge to sign it of course but it is not signed.

[lisser]

Where I am from an order presented to the court has to be approved by both sides in a certain period of time. This should be a common practice, research your Civil Procedures and or Rules of Court and find this information. In California I believe it is 30 days. If the opposition or you don't respond then it is submitted to the court for signature as unopposed.

Once having found the procedure or rule that supports this, then re-draft the order with the changes you want. In your original post the judge said something to the affect of " I don't see that she has to initiate". You want to drive this point home with the other side, their claim against you, contract is clear "elect" by definition is different than "initiate". Two different things, this is WWR clients contract.

When you make the changes give them ample time to initiate, like 6 months. The reason being is that if this flips on you now you have a timeline involved, your honor I was willing to give them 6 months, shouldn't I be afforded the same.

You still hold a hammer, don't sign send your proposed order with a letter outlining the contract language differences between electing and initiating and judges quote made in front of both you and the attorney. Make a big deal about this in your letter! Throw a bit of sarcasm at them, I am sure this is a mistake in light of the judges comments during our hearing where he state "XXXXXXX" and it appears you missed that in your preperation of the order. As you recall he complimened my pro se filing and preperation, it is disappointing that your firm can't keep up with this case and the judges discussion during the hearing. While this is an oversight I am sure you can agree it is signifcant. Blah Blah Blah...

Good Luck keep sticking it to them.

Hmmm, I like this a lot but I'm nervous about how to recognize where the rule or procedure would be found...would it be called something like amending an order? Appealing an order?

[maggie22]

Ya gotta get the rule book, in my state it's online/free...It's as easy as looking at the index, ours is ruleXXX Entry of Orders, then it sets forth the rules for having them entered...

Ok, I found the rules for your state, try here: kybar.org, then click links, then click resources drop down, scroll click KY civil procedure

..then scroll way down for the procedures for entering orders...

Edited September 29, 2010 by maggie22
addtl info

[RebelLady]

It looks like what you're looking for is in CR-12

CR 12 Defenses and objections; when and how presented; motion for judgment on pleadings

RL

[FL4answer58]

Hmmm, I like this a lot but I'm nervous about how to recognize where the rule or procedure would be found...would it be called something like amending an order? Appealing an order?

OBJECTION TO __________ ORDER AND MOTION TO RESCIND OR MODIFY

or if not on Arb, Motion for Enlargment.

Edited September 29, 2010 by FL4answer58

[admin]

Why not initiate it? Why is that a bad thing?

[lisser]

Why not initiate it? Why is that a bad thing?

I don't have a problem initiating at all but I like to have a few choices and of course I like to inconvenience them and cost them as much money and time as possible.

I think the argument of "why should I file a claim against myself in arbitration" is a good one. Election and initiation of arbitration are two different things. I have elected it bc I don't want to be in court on the matter and the cardmember agreement clearly states that any issues should be settled in arbitration rather than court. They sued me, I didn't sue myself therefore they should initiate arbitration as well if they want to settle. I tried to settle with them and pay but they refused my offer.

[admin]

I would just be worried that if no one files arbitration then court proceedings will start right back up and you could find yourself with a judgment.

[maggie22]

The one advantage to having them initiate is they pay all the costs, rather than getting into what potion may be attributed to the OP and waivers etc...I'm interested to know what fees if any are imposed upon a respondent that files a counterclaim.

[FL4answer58]

I would just be worried that if no one files arbitration then court proceedings will start right back up and you could find yourself with a judgment.

Most states lean this way today. If you do not and they do not initiate – unless court order one party to do so, ...

1) Auto dismiss – Lack of prosecution

2) Court appointed mediator

Better to be prepared.

[lisser]

The judge ordered us to arbitration pursuant to contract sued upon but he stated he couldn't make one or the other initiate. This makes things interesting but I can see the judge getting frustrated if one of us does not initiate. I won't make a huge fuss over it but I will certainly use my legal right to oppose the Plaintiff's request for me to initiate a claim against myself.

[FL4answer58]

The judge ordered us to arbitration pursuant to contract sued upon but he stated he couldn't make one or the other initiate. This makes things interesting but I can see the judge getting frustrated if one of us does not initiate. I won't make a huge fuss over it but I will certainly use my legal right to oppose the Plaintiff's request for me to initiate a claim against myself.

Did the judge apply a time on "This action held in abatement pending termination of arbitration proceedings."

If the Plaintiff does not file or take action between now and 'that' time - it will be dismissed.

[lisser]

Did the judge apply a time on "This action held in abatement pending termination of arbitration proceedings."

If the Plaintiff does not file or take action between now and 'that' time - it will be dismissed.

No, no time line.

[FL4answer58]

No, no time line.

Look at your RCP's - note auto dimissal time limit when no action is taken by moving party - then at that time of experation, file MTD - lack of prosecution.

I don't recall your Arb'r - AAA or JAM's ? Register on-line (you will establish intent and good faith). Copy and attach to your MTD. If they do not initiate, ...Plaintiffs failure to join a party under Rule 19?

You are not the movant in claim - party that brought the action - you merely opted for the jurisdiction clause attached in claim - the moving party can not expect the non-movant party to initiate a claim, for them, against yourself.

While no established precedent in law exist, See: 'Man Hits His Own Car Then Sues Himself, 'LODI, Calif. The city denied that claim because Gokey was, in essence, suing himself.

---------------

CR 41.02 Involuntary dismissal; effect thereof

(1) For failure of the plaintiff to prosecute or to comply with these rules or any order of the court, a defendant may move for dismissal of an action or of any claim against him.

(2) In an action tried by the court without a jury, after the plaintiff has completed the presentation of his evidence, the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. The court as trier of the facts may then determine them and render judgment against the plaintiff or may decline to render any judgment until the close of all the evidence. If the court renders judgment on the merits against the plaintiff, the court shall make findings as provided in Rule 52.01.

(3) Unless the court in its order for dismissal otherwise specifies, a dismissal under this Rule, and any dismissal not provided for in Rule 41, other than a dismissal for lack of jurisdiction, for improper venue, for want of prosecution under Rule 77.02(2), or for failure to join a party under Rule 19, operates as an adjudication upon the merits.

HISTORY: Amended by Order 89-1, eff. 8-28-89; prior amendment eff. 7-1-69; adopted eff. 7-1-53

Edited September 30, 2010 by FL4answer58

[ink]

Of course I disagree with my initiating arbitration. Why should I file a claim against myself but I do not know to voice that since I'm the one that has asked for this to be settled via arbitration. Does anyone have any suggestions on where to go from this.

Personally I think this is just WWR's way of doing what the judge told their attorney to do, write an order since WWR's attorney didn't like my order, and then maybe/hopefully after this then they will turn this back over to 1 to deal with?

"but I do not know to voice that since I'm the one that has asked for this to be settled via arbitration."

DID you start an arbitration??? See quote above

_________________________

The information is not intended to be legal advice. If you need legal advice, you should contact a lawyer through your local legal aid organization. Always talk to a competent lawyer, if you can, before taking legal action. The public service information is accurate as of the date noted in the materials. Sometimes the laws change.

[lisser]

I requested that this dispute be taken out of the court system and handled in the forum of arbitration pursuant to their cardmember agreement. I have not initiated, therefore I have not started an arbitration.....

Of course I disagree with my initiating arbitration. Why should I file a claim against myself but I do not know to voice that since I'm the one that has asked for this to be settled via arbitration. Does anyone have any suggestions on where to go from this.

Personally I think this is just WWR's way of doing what the judge told their attorney to do, write an order since WWR's attorney didn't like my order, and then maybe/hopefully after this then they will turn this back over to 1 to deal with?

"but I do not know to voice that since I'm the one that has asked for this to be settled via arbitration."

DID you start an arbitration??? See quote above

_________________________

The information is not intended to be legal advice. If you need legal advice, you should contact a lawyer through your local legal aid organization. Always talk to a competent lawyer, if you can, before taking legal action. The public service information is accurate as of the date noted in the materials. Sometimes the laws change.

[FL4answer58]

Best bet if not forced to initiate is wait it out - MTD failure to prosecute.

For those MTC w/Arb but fighting - they often file SJ to stop it.

Re: If Their fighting MTC Arb and/or with SJ

Options: Argument and Opinions for consideration: [Part 1]

(1) Uniform Arbitration Act Remove to Federal Court.

The Uniform Arbitration Act provides that a contractual agreement to arbitration is valid, enforceable, and irrevocable.

(2) Validity of Arbitration Clause

While Arbitration clause interpretation and validity in the US is not a settled legal matter. However, if the arbitration clause includes a provision which states that the arbitrator "shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability", the arbitrator decides the validity of the clause. See, SCOTUS case [Rent-A-Center, West, Inc. v. Jackson]. Interpretation of evidentiary provision in arbitration agreement should have been left to arbitrator. See, Scovill v. WSYX/ABC (6th Cir 10/06/2005). http://www.lawarbitration.net/

(3) No Summary Judgment with 'Controversy'

A motion for summary judgment is generally filed with supporting evidence without controversy. If that evidence includes a contract agreement, and the validity or interpretation of the agreement becomes part of summary judgment evidence then ‘material facts exist with substantial controversy’. When a contract agreement includes an Arbitration Clause that has not been established – thus controversy, no SJ. Review your RCP [summary Judgment]. See, Case Not Fully Adjudicated on Motion - the court at the hearing of the motion, by examining the pleadings and the evidence before it and by interrogating counsel, shall ascertain, if practicable, what material facts exist without substantial controversy.

(4) Inconsistencies Exist in the Language of the Contract

Once controversy exists, argue to the judge inconsistencies exist between an allegation in a pleading and an attached exhibit, such that the latter negates the former, the plain language of the attached document will control, and can be a basis for a substantive motion to dismiss. The language in attached contract agreement, permitting either party to exercise Arbitration, negates allegation in SJ complaint that one party (defendant) failed to invoke arbitration clause (or forfeited rights to Arbitration), warranting dismissal of the action. Striton Props., Inc. v. Jacksonville Beach, 533 So.2d 1174 (Fla. App. 1 Dist. 1988).

(5) Use The ‘Plain Language’ of the Arbitration Clause

The plain language of the Arbitration Clause in the contract agreement reads;

“Starting An Arbitration: You or we can give written notice of a intention to begin arbitration of a Claim or Claims or to require arbitration of the other party’s Claim or Claims. This notice can be given by one party even if the other party has begun a lawsuit.”

The plain language of the Arbitration Clause requires an SJ motion state with particularity how ‘the defendant failed to invoke arbitration clause’ and the grounds upon which it is based and the substantial matters of law. ‘The key is in the definition or interpretation of ‘language’ in the arbitration clause. The language may differ from agreement to agreement but are comparable and many times identical.

(6) MTC Is Not Time Bared

All that has been established is that ‘one party has begun a law suit’ and notice has been given to require Arbitration of the other partys Claim. The fact that a party participated in defensive pleadings, has no legal grounds upon which to claim defendant ‘failed to invoke Arbitration’ when no contractual SOL exists in the language of the Arb Clause. The failure to execute RCP [rules] may or may not exist for example: if the defendant does not file an answer before pretrial. The validity of the Arbitration Clause itself may be grounds to challenge (file), but the MTC is not time bared in its self. The language and definition ‘begun’ [a lawsuit], is vague and NOT a quantifiable definition as it was used in the context of the agreement. The contractual agreement did not define a SOL on ‘begin’ or ‘begun’. Pretrial conferences may be remanded to hearings when genuine issues of material fact exists, as to the terms or agreements of a contract. See, Mora v. Abraham Chevrolet (Florida Ct App 09/21/2005).

(7) Pretrial Discovery Not Undisputed Material Fact or Burdensome

The argument of unnecessary delay and expense is not supported by statute or an ‘undisputed material fact’. Pre-trial discovery is necessary and not a ‘burden’ or delay. Pre-trial identifies the cause of action. See, First City Developments of Florida, Inc. v. The Hallmark of Hollywood Condo. a$$'n, 545 So. 2d 502 (Fla. 4th DCA 1989). And , First Health Care Corp. v. Hamilton, 740 So. 2d 1189, 193 (Fla. 4th DCA 1999).

(8) Appeal - Summary Judgment Verdict

In an alternative, a party may file an appeal. Look at ‘Conley’ Pro Se filing as an example for effective process and argument(s) for an appeal: On appeal, Conley asserts that the trial court erred in granting summary judgment. See, Retail Recovery Service of NJ, Plaintiff-Appellee, v. Teresa A. Conley, Defendant-Appellant. No. 10-09-15. Court of Appeals of Ohio, Third District, Mercer County. Date of Decision: March 29, 2010.

The moving party may add additional assignment of error on appeals: The ‘Conley’ appeal did not deal with Arbitration controversies.

ARBITRATION; THE LOWER COURT ERRED IN DISREGARDING THE CARDHOLDER AGREEMENT OR TERMS AND CONDITIONS GOVERNING THE ALLEGED ACCOUNT. *Note: Review case law in your State or Circuit to reverse or remand argument(s) for appeal.

Appeals based on filing of motions are important. IF THE MOTION IS UNTIMELY. EVEN IF GRANTED, THE ORDER WILL BE REVERSED. IF DENIED MORE THAN 20 DAYS FROM NOW, THERE WILL BE NO WAY TO APPEAL BECAUSE THAT MOTION DID NOT EXTEND YOUR TIME TO APPEAL! Pay attention to the difference between deadlines for "service" and "filing" of pleadings.

Edited October 1, 2010 by FL4answer58

[FL4answer58]

Re: If Their fighting MTC Arb and/or with SJ

Options: Argument and Opinions for consideration: [Part 2]

(9) Motion to Disqualify Judge on Bias or Prejudice

Motions to Disqualify Judges for Bias or Prejudice. Unless the judge is related to the Plaintiff, or is listed as a witness, the only real grounds for seeking disqualification are bias or prejudice. Before trying to disqualify any judge, read and re-read your Rules of Judicial Administration, entitled DISQUALIFICATION OF TRIAL JUDGES. Keep in mind the ’10 day rule. See, Pinnacle Ins. Co. v. Freeman, 687 So. 2d 989 (Fla. 5th DCA 1997).

Note: Some judges sometimes get so annoyed with Pro Se litigants (and lawyers) that they threaten them or demean them to the point of demonstrating prejudice. See, e.g., Olszewska v. Ferro, 590 So. 2d 11 (Fla. 3d DCA 1991). If your MTC was denied, you may feel compelled to delicately conduct a sort of mini voir dire of the judge in such a case to ask if the judge has some axe to grind. First, stay clam and understand that the judge may not assess the truth of the allegations in your motion. See Nathanson v. Nathanson, 693 So. 2d 1061 (Fla. 4th DCA. 1997) A Judge must rule on the legal sufficiency of a motion to disqualify without passing on its truth or falsity, and without permitting a third party to offer testimony or explanations of the judge's conduct. If the judge takes issue with the content of the motion, that alone is grounds for disqualification. Leveritt & Assocs., P.A. v. Williamson, 698 So. 2d 1316 (Fla. 2d DCA 1997) Where the trial court improperly reviewed and attempted to rebut the factual allegations contained in petitioner's motion to disqualify, this established sufficient grounds for the trial's court disqualification). Kielbania v. Jasberg, 744 So. 2d 1027 (Fla. 4th DCA 1997) Judge, who interjected comments that verged on argument with counsel during a hearing. The judge, did not follow the directives of Fla. R. Jud. Admin. 2.160(f),

(9) (A) “The Judge has a boss.” Review Canons of Judicial Conduct

I will repost here for clairification.

OP: Judge was on the way to MSJ and deny our MTC Arb. Would not even give us a hearing. We prepared to file a complaint against judge, but opted to call the Chief Judge (designated chief administrator of County judges) and talked to his clerk. I was asked to send a Email or letter [case number] and details. The residing judge was called on the case.....a hearing was set.......MTC Arb granted in hearing but with stay. In this case the judge 'turned' very consumer friendly after reported Canon violations of judicial conduct but pointed the finger to 'clerical' errors by staff in her office and promised an investigation. Take the emotions out of the complaint - just state the facts. Your not suing a judge - your asking for a clarification and correction. Give the judge room for manuvering - address your issues to purpose the opposition - the plaintiffs! The judge will find the necessary means. As for a grudge - from my perspective that judge may well end up our best advocate.

The Law on Recusal of a Judge

Federal law requires the automatic disqualification of a Federal judge under certain circumstances. In 1994, the U.S. Supreme Court held that "Disqualification is required if an objective observer would entertain reasonable questions about the judge's impartiality. If a judge's attitude or state of mind leads a detached observer to conclude that a fair and impartial hearing is unlikely, the judge must be disqualified." [Emphasis added]. Liteky v. U.S. , 114 S.Ct. 1147, 1162 (1994). Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 108 S.Ct. 2194 (1988) United States v. Balistrieri, 779 F.2d 1191 (7th Cir. 1985). Taylor v. O'Grady, 888 F.2d 1189 (7th Cir. 1989). Pfizer Inc. v. Lord, 456 F.2d 532 (8th Cir. 1972).

(10) Amendments to Pleadings to Defeat Summary Judgment–Never Too Late!

It is never too late to amend your complaint or another pleading in order to defeat a motion for summary judgment. No case cites; I only cited FRCP Rule 1.190. [Your state may be the same). The judge may not grant it on the day of SJ hearing, but you set the motion for reverse on appeal by including; Leave to amend should be freely given when justice so requires, Fla. R. Civ. P. 1.190(a), the more so when a party seeks such a privilege at or before a hearing on a motion for summary judgment." Old Republic Ins. Co. v. Wilson, 449 So. 2d 421, 422 (Fla. 3d DCA 1984)(emphasis added in language of your amendment).

Check your complaint before the hearing on a Plaintiffs motion for summary judgment (even a day before), to see if there is affirmative defense you could have pled to the cause of action but did not. Did the JDB lawyer, for example, move for SJ on a Breach of Contract you could avoid by pleading ‘Failure to Pursue Alternative Dispute Resolution’ or “Failure of Condition Precedent’ , in your Reply?

(11) Motion for Reconsideration

While the rules of civil procedure themselves do not authorize motions for rehearing directed to nonfinal orders, a trial court does have the inherent authority to reconsider and alter or retract such orders prior to the entry of final judgment. Review your states RCP’s. A motion directed to a nonfinal order is actually a "motion for reconsideration" based upon this inherent and discretionary authority of the trial court; (emphasis added) on differences between reconsideration and rehearing. Be aware of the basis for reconsideration--as well as its effect on any subsequent appeal--from the case law. See, http://findarticles.com/p/articles/mi_hb6367/is_6_83/ai_n31945803/

(12) Motion to Vacate Summary Judgment then claim damages (in Arbitration)

A motion to vacate judgment refers to a request that is filed before the court that entered the judgment to dismiss the judgment. Law prescribes specific time line and grounds for filing such motions. There are state specific laws on the subject which vary from state to state.

Edited October 1, 2010 by FL4answer58

[deadbeat00]

I don't have a problem initiating at all but I like to have a few choices and of course I like to inconvenience them and cost them as much money and time as possible.

I think the argument of "why should I file a claim against myself in arbitration" is a good one. Election and initiation of arbitration are two different things. I have elected it bc I don't want to be in court on the matter and the cardmember agreement clearly states that any issues should be settled in arbitration rather than court. They sued me, I didn't sue myself therefore they should initiate arbitration as well if they want to settle. I tried to settle with them and pay but they refused my offer.

If you have a claim against them, i.e. FDCPA violation, then initiate only on your claim and let them bring their claim as the RESPONDENTS. That way you are not suing yourself.

Edited October 3, 2010 by deadbeat00

[FL4answer58]

If you have a claim against them, i.e. FDCPA violation, then initiate only on your claim and let them bring their claim as the RESPONDENTS. That way you are not suing yourself.

(12) (a)Initiate Arbitration. If you have a claim against them , i.e. FDCPA violation, then initiate only on your claim and let them bring their claim as the RESPONDENTS. That way you are not suing yourself. Send Plaintiff CMRR letter that you have initiated. No further explaination. Request they pay as per the Arb clause - if so in langauage of the clause. Pay your small fee as required. Copy and 'notice' the court as required.

Edited October 3, 2010 by FL4answer58

[deadbeat00]

(12) (a)Initiate Arbitration. If you have a claim against them , i.e. FDCPA violation, then initiate only on your claim and let them bring their claim as the RESPONDENTS. That way you are not suing yourself. Send Plaintiff CMRR letter that you have initiated. No further explaination. Request they pay as per the Arb clause - if so in langauage of the clause. Pay your small fee as required. Copy and 'notice' the court as required.

The nice part is that if you do that right i.e. you do not name the OC as a respondent then the CA can't bring it in because the lawyer cannot initiate a lawsuit nor arbitration and OC can't arbitrate on its own, nether JAMS nor AAA will accept OC's consumers arbitration demand and after you initiate the court has no jurisdiction. [checkmate]